No tears for independent counsel law

The independent counsel law died with a whimper this week, even as
current Independent Counsel Kenneth Starr permitted Clinton crony Web
Hubbell off with a plea-bargain that included no promise of future
cooperation — meaning the Hubbell end of the cover-up is intact. Few
are left to weep at the demise of this Watergate-era law that tried with
mostly perverse results to finesse the conflict-of-interest problem that
can arise when serious allegations of wrongdoing are presented to a U.S.
Attorney General concerning the person with the power to hire and fire
the attorney general.

Most critics, however, missed the most egregious shortcoming of the law.
The fact that an independent counsel had almost unlimited time and
budgets for fishing expeditions, that independent counsels ended up not
accountable to anybody as they spent taxpayers’ money and that the law
undermined the Department of Justice came up in most news stories.
Former special counsel Archibald Cox, whose firing by President Nixon
during Watergate probably led to the law’s passage, noted in a nice
sound-bite that the law criminalized the political process and
politicized the judicial system.

But few mentioned how the law had contributed to the House’s failure to
mount a convincing case for impeachment last Fall and Winter. The fact
that the U.S. Constitution places responsibility for
impeachment in the hands of the House of Representatives, with the
Senate responsible for deciding whether to convict, underscores the fact
that impeachment, while having many judicial-like aspects, is a
quintessentially political procedure. It is the system’s way of getting
rid of an official who has become just too much to bear. And while the
term “other high crimes and misdemeanors” can refer to actions made
illegal by statutes, it is really a term of art that can be roughly
translated as “that so-and-so has done too many shady and embarrassing
things; it’s time for him (or her) to go.”

During Watergate plenty of lawyers were hired and lots of legal jargon
was tossed about as the House considered whether or not to impeach
Richard Nixon. But what made the impeachment likely to succeed, which
brought on the resignation, was the cumulative impact of untold hours of
Senate and House hearings, some of them broadcast in their entirety and
all widely covered by the media.

It wasn’t any one thing and it rather decidedly wasn’t a sudden public
revelation that the president had actually — gasp! — broken a law that
turned public opinion. It was the drip-drip-drip of apparently unending
revelations of (at least) questionable behavior that, over the course of
a couple of years, made impeachment and removal seem a live possibility.

Contrast that with the attempt to remove President Clinton from office.
The House didn’t hold hearing after hearing after hearing on the
president’s impeachable shortcomings and malfeasance. It didn’t have to.
It had Ken Starr, with his ongoing investigation and virtually unlimited
budget, to do all the difficult investigating and documentation.

It is hardly to denigrate the quality of Mr. Starr’s investigation or
report to suggest that its political impact was much less telling than
it might have been had the revelations come out one by one, over a
period of months, with the impact of each new revelation building on the
last one. As it was, the report got fairly decent coverage, but hardly
anybody read the whole thing. All the revelations were lumped into a few
news stories concentrated into a couple of days, so they were naturally
telescoped and most of the supporting details simply weren’t included.

Legally, the Starr team might have made an airtight case.

Politically, the effort thudded to the floor.

In part that’s because when Congress relied on Starr to make its case,
it ended up with a case heavy on legalistic language and light on
political sensitivity and impact. But most
people really didn’t care whether a prosecutor could make a solid case
that Clinton had actually transgressed some sub-paragraph of some
federal law. They cared whether he had done enough outlandish and
embarrassing things that he ought to go.

The only way — well, maybe not the only but one of the most effective
— to persuade a significant enough percentage of the public to support
removal (especially given the fact that the vast majority of the media
wouldn’t cooperate) would have been to hold hearing after hearing in
Congress, both House and Senate, on various aspects of Clintonian
wrongdoing. With at least some cable or Fox coverage, it might have
worked — or it might not have. But it would have made impeachment what
it really is — a political procedure that deserves to succeed when it
has the support of a majority of the American people. But Congressional
Republicans thought Ken Starr had done the heavy lifting, so they
didn’t. By relying on him they made the procedure too legalistic and not
political enough. So they failed.

That wasn’t Ken Starr’s fault, but it can in some measure be laid to the
existence of the independent counsel law. By and large, Congress will
shrink from hard work and political controversy whenever possible. The
independent counsel law gave it the opportunity to do so.